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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 92-5054
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BARNEY HOLT, III, a/k/a TREY HOLT,
Defendant-Appellant.
_______________
No. 92-5055
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEVEN W. ARNOLD,
Defendant-Appellant.

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* Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
2
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No. 92-5266
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PATRICK M. O'LEARY,
CANDACE JOHNSON O'LEARY,
and PAUL W. BEAL
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Western District of Louisiana
(92 50017)
_________________________
(October 26, 1993)
Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Barney Holt, III, Steven Arnold, Patrick O'Leary, Candace
O'Leary, and Paul Beal appeal their convictions and sentences of
one count of conspiracy to manufacture methamphetamine with intent
to distribute. Finding no error in the convictions or sentences of
Holt and Arnold, we affirm as to them. Finding a misapplication of

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3
the Sentencing Guidelines (the "Guidelines"), we remand as to
Patrick and Candace O'Leary for resentencing. Since Beal's notice
of appeal was not timely filed, we remand for a determination of
excusable neglect.
I.
A.
The conspiracy to manufacture methamphetamine consisted of
seven key individuals: S. Patrick Phillips, an attorney and leader
of the conspiracy; Candace O'Leary, Phillips's friend and legal
secretary; Patrick O'Leary, Candace's husband; Arnold, a friend of
Patrick O'Leary's; Holt, a friend of Beal's and acquaintance of
Reggie Atkins's; Beal, a friend of Holt's and Atkins's; and Reggie
Atkins, an unindicted friend of Beal's. Other individuals were
involved in the manufacture of methamphetamine on various occa-
sions, but played minor roles.
There were several attempts to produce methamphetamine from
phenylacetic acid ("PA") during 1989 and 1990. These attempts are
known as "cooks." Each of the defendants at one time or another
supplied chemicals, glassware, or equipment for the cook, supplied
a location for the laboratory and/or for the storage of chemicals
and equipment, transported chemicals and apparatus, or supplied
skill and knowledge of the process.
The conspiracy began with the O'Learys and Phillips attempting
a cook in March 1989. Phillips later supplied chemicals to Atkins
and attempted two cooks in the summer of 1990. After Phillips was

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arrested, Beal and Holt attempted a cook with the leftover
ingredients. During Phillips's arrest, various supplies and
glassware were seized from his shed, including a hand-written
formula in Candace O'Leary's handwriting. Arnold and Patrick
O'Leary moved a garbage can containing PA from the O'Learys' home
to Arnold's, where it was seized by police.
A search of Holt's residence turned up various glassware and
some methamphetamine residue. Beal's fingerprint was found on one
of the pieces of glassware seized from Holt's residence; Patrick
O'Leary's fingerprint was found on glassware in Arnold's residence.
Apparently, chemicals were supplied by Phillips to Atkins who, with
Beal and Holt, attempted at least two cooks at Phillips's residence
and elsewhere. According to the government, the O'Learys acted as
go-fers, users, transporters, and helpers with the cooks.
Furthermore, Candace O'Leary and Arnold distributed the completed
methamphetamine. Various physical evidence (e.g., a cooker,
glassware, residue, fingerprints, and equipment) linked all seven
individuals to the various cooks.
B.
Six individuals, Phillips, Candace O'Leary, Patrick O'Leary,
Arnold, Holt, and Beal, were charged in a five-count indictment
with conspiracy to manufacture methamphetamine in violation of
21 U.S.C. §§ 841(a)(1) and 846. Phillips was charged with one
count of attempting to manufacture methamphetamine. Phillips,
Candace O'Leary, Patrick O'Leary, and Arnold were charged with one

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5
count of possession of PA with intent to manufacture methamphet-
amine. Beal and Holt were charged with one count of attempting to
manufacture methamphetamine. The fifth count was a count of
forfeiture of property used to facilitate the commission of a
criminal offense.
Holt and Arnold pled guilty to the conspiracy count and
testified against the other four defendants, who were tried and
convicted of conspiracy to manufacture methamphetamine. Only
Phillips was convicted of possessing PA. The other defendants were
acquitted of the other substantive offenses. All defendants filed
motions for judgment of acquittal and for new trial. All of the
motions were denied, except that Phillips's motion for new trial
was granted (and hence he is not one of the appellants here).
C.
Arnold was sentenced to 96 months' imprisonment, a downward
departure from his guideline range of 210 to 262 months. Holt was
sentenced to 60 months' imprisonment, a downward departure from his
guideline range of 135 to 168 months. Holt and Arnold filed timely
appeals claiming that the court miscalculated their "relevant
conduct" under the Guidelines.
Candace O'Leary was sentenced to 151 months' imprisonment,
plus three years' supervised release. She filed a timely notice of
appeal, claiming that (1) the evidence was insufficient to support
the conviction; (2) exculpatory evidence was withheld by the
government, violating her rights under Brady v. Maryland and

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6
requiring a new trial; (3) the trial court erred in refusing to let
her put on evidence concerning her financial condition and the
temperature of her attic; (4) the improper testimony by Culberhouse
that prejudiced Phillips also prejudiced her, and therefore she
should be granted a new trial; and (5) the court misapplied the
Guidelines' equivalency tables and miscalculated her relevant
conduct.
Patrick O'Leary was sentenced to 151 months' imprisonment,
plus three years' supervised release. He filed a timely notice of
appeal, claiming that (1) the evidence was insufficient to support
the conviction; (2) exculpatory evidence was withheld by the
government, violating his Brady rights and requiring a new trial;
and (3) the court misapplied the Guidelines' equivalency tables and
miscalculated his relevant conduct.
Paul Beal was sentenced to 235 months' imprisonment, plus six
years' supervised release. He filed an oral notice of appeal at
sentencing and later filed a written notice of appeal thirty-four
days after the final order. He claims that (1) his notice of
appeal was timely filed; (2) the evidence was insufficient to
support the conviction; (3) his Brady rights were violated,
requiring a new trial; and (4) the court misapplied the Guidelines'
equivalency tables and miscalculated his relevant conduct.
Thus, in summary, defendants Holt and Arnold challenge only
the application of the Guidelines to their relevant conduct. The
three defendants who stood trial raise sufficiency claims, Brady
claims, and Guidelines claims. Candace O'Leary additionally raises

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various evidentiary issues. The appeals were consolidated.
III.
Four of the five defendants filed a timely notice of appeal.
Beal, however, made an oral notice of appeal in court and filed a
written notice of appeal thirty-four days after the final order.
A timely notice of appeal is a prerequisite to our exercise of
jurisdiction. United States v. Winn, 948 F.2d 145, 153 (5th Cir.
1991), cert. denied, 112 S. Ct. 1599 (1992). Federal Rule of
Appellate Procedure 4(b) governs when a notice of appeal is timely
in a criminal case and requires that the notice of appeal be filed
in the district court within ten days of the entry of judgment or
order from which the defendant appeals. This circuit has held in
O'Neal v. United States, 264 F.2d 809, 812 (5th Cir.), modified,
272 F.2d 412 (5th Cir. 1959); and Durel v. United States, 299
F.2d 583 (5th Cir. 1961), that oral notice of appeal is no
substitute for the filing of written notice.
The fact that the district court apparently "granted" the oral
notice of appeal cannot transform the ineffective oral notice into
a written one. Thus, the oral notice did not satisfy rule 4(b).
Rule 4(b) allows the district court to extend the time for
filing for an additional thirty days for excusable neglect. The
filing of an untimely notice of appeal within the additional
thirty-day period is treated as a motion for a determination as to
whether excusable neglect entitled the defendant to an extension of
time to appeal. United States v. Awalt, 728 F.2d 704, 705 (5th

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Cir. 1984). Beal's notice was filed within the additional period
for excusable neglect. We do not presume the absence or presence
of excusable neglect but must remand to the district court for the
determination. United States v. Golding, 739 F.2d 183, 184 (5th
Cir. 1984). There is nothing in the record indicating that the
district court already has considered this issue. Thus, we remand
to the district court as to Beal for a determination of excusable
neglect. We retain jurisdiction over the matter, however, and will
determine the status of Beal's appeal following the district
court's decision on remand.
IV.
The three defendants who were convicted at trial contest their
convictions, claiming that the evidence was insufficient for a
rational jury to have concluded beyond a reasonable doubt that they
were guilty. They appeal the district court's denial of their
motions for judgment of acquittal.
We review the district court's denial of a motion for judgment
of acquittal de novo. United States v. Sanchez, 961 F.2d 1169 (5th
Cir.), cert. denied, 113 S. Ct. 330 (1992). Although the evidence
is reviewed in the light most favorable to the government, drawing
all reasonable inferences in support of the verdict, the conviction
should be reversed if a rational jury could not have found that the
evidence established each essential element of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).
To establish a conspiracy under 21 U.S.C. § 846, the govern-

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ment must prove beyond a reasonable doubt (1) an agreement between
two or more persons to violate the narcotics laws, (2) that each
alleged conspirator knew of the conspiracy and intended to join it,
and (3) that each alleged conspirator did participate voluntarily
in the conspiracy. United States v. Leed, 981 F.2d 202, 204-05
(5th Cir.), cert. denied, 113 S. Ct. 2971 (1993).
A.
The three defendants first claim that they could not have been
part of the indicted conspiracy because they did not know each
person in the conspiracy. There may have been several two- or
three-person conspiracies, but no evidence suggests the existence
of the five-person conspiracy alleged in the indictment. Holt knew
only Beal, and neither knew the O'Learys. The O'Learys admit that
there was evidence that they participated in cooks at their own
home and at Phillips's, but not with the other co-conspirators,
Beal and Holt. Beal contends that only a conspiracy between him
and Holt could possibly be established. He contends that there was
no conspiracy between Holt/Beal and the O'Learys/Arnold.
This court has held that "[i]t is not necessary that all the
members of a conspiracy know each other or that they work together
on every transaction." United States v. Elam, 678 F.2d 1234, 1247
(5th Cir. 1982); see also United States v. Brasseaux, 509 F.2d 157
(5th Cir. 1975) (holding that members of a single conspiracy need
not be aware of the existence of the other members). If the
totality of the evidence is sufficient to demonstrate a concert of

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action unified by a common purpose, a single conspiracy exists.
Elam, 678 F.2d at 1246. Thus, that the O'Learys and Arnold knew
only Phillips, but not Holt and Beal, is irrelevant. The evidence
shows that they all worked in various stages and locations for a
common purpose: to produce methamphetamine. Furthermore, they
were all to benefit from its production.
B.
Both O'Learys cite Kotteakos v. United States, 328 U.S. 750,
774-75 (1946), for the proposition that the guilt of Holt was
transferred across the lines of the conspiracies. They claim that
testimony about Holt's theft of his child's social security
benefits to pay for drugs prejudiced both of the O'Learys because
neither one knew Holt.
Kotteakos is relevant only when the allegedly prejudicial
evidence concerns another conspiracy. But under Elam, the jury was
entitled to view the conspiracy as a whole. Kotteakos does not
apply to evidence impugning co-conspirators. Furthermore, it is
unlikely that a reasonable jury would view the testimony against
Holt as applying to the O'Learys. The physical and circumstantial
evidence adduced at trial supports the convictions of all three
defendants, and each conviction therefore is affirmed.
V.
The three defendants convicted after trial further claim that
the government withheld exculpatory evidence in violation of their

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rights under Brady v. Maryland, 373 U.S. 83 (1963). Under Brady,
the government may not suppress material evidence favorable to the
accused, irrespective of the good or bad faith of the prosecution.
Id. at 87. But a defendant is entitled to a new trial only when
there is a reasonable probability that the result would have been
different. United States v. Nixon, 881 F.2d 1305, 1308 (5th Cir.
1989). Furthermore, whether Brady evidence is material depends
upon its value in relationship to the other evidence presented at
trial. Smith v. Black, 904 F.2d 950, 967 (5th Cir. 1990), vacated
on other grounds, 112 S. Ct. 1463 (1992).
The three defendants who stood trial claim that the grand jury
testimony of Atkins and subsequent affidavit were material because
he claimed not to know of any cooks or illegal activities. Since
Atkins was a key figure in the criminal activities, his testimony
would be both exculpatory and impeaching. They demand reversal of
their convictions and new trials.
The government claims that the Atkins affidavit is merely
self-serving. Moreover, since Atkins was available to the defense
counsel, they could have called him at trial; the government did
not suppress his testimony or the knowledge of his existence.
Each of the defendants knew that Atkins played a pivotal role
in the conspiracy. They could have called him to testify; their
failure to call Atkins cannot be blamed on the government. When
approached by defense counsel, Atkins's attorney stated that Atkins
would plead the Fifth Amendment and refuse to testify. Whether
Atkins's testimony would have been material, i.e., exculpatory and

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credible, is another issue, but we can reject the defendants'
argument on the ground that the government did not suppress the
evidence.
The defense counsel knew Atkins's role but could not force him
to testify. The government did not conceal his existence or the
substance of his testimony. Thus, the defendants' argument must be
rejected.
VI.
Only Candace O'Leary raises the argument that the Atkins
testimony represents new evidence requiring a new trial. To get a
new trial based upon new evidence, a defendant must show (1) the
evidence was newly discovered and was unknown to the defendant at
the time of the trial; (2) failure to detect the evidence was not
a result of lack of due diligence by the defendant; (3) the
evidence is material, not merely cumulative or impeaching; and
(4) the evidence probably will produce an acquittal. United States
v. Peña, 949 F.2d 751 (5th Cir. 1991). If any one factor is not
satisfied, the motion for new trial should be denied. United
States v. Lopez-Escobar, 920 F.2d 1241 (5th Cir. 1991). The
appellate court reviews the denial of such a motion for clear abuse
of discretion. United States v. Adi, 759 F.2d 404 (5th Cir. 1985).
Several of the factors have not been satisfied. First, there
is no reason why the defendants did not obtain the Atkins affidavit
before trial. They knew he existed and could have obtained an
affidavit from him. That failure represents a certain lack of

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diligence. Second, it is not obvious that Atkins's testimony would
have helped the defendants. As an unindicted co-conspirator, his
testimony would have been suspect. Furthermore, the testimony was
unlikely to produce an acquittal, given the physical evidence
connecting the defendants to the conspiracy.
Given the deference with which we review a denied motion for
new trial, and the questionable value and prior unavailability of
the new evidence, we reject Candace O'Leary's claim for a new trial
based upon new evidence.
VII.
Candace O'Leary also appeals the district court's refusal to
admit evidence concerning her financial condition and her attic
temperature. The defendant contended that this evidence would have
shown that she was unable to purchase the necessary chemicals and
that the cook could not have been conducted in her attic. The
district court refused to admit the evidence for lack of relevancy.
We review evidentiary questions for abuse of discretion. Peña,
949 F.2d at 751.
The government contends that the testimony regarding her
financial condition is irrelevant because it was never alleged that
Candace O'Leary financed the operation. The chemicals came from
either Phillips or unknown sources. Since it was not part of the
government's case that Candace O'Leary financed the purchase of

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1 She also argued that she was financially unable to pay Alton Thomas $600
to buy chemicals, thus impeaching his testimony. However, her "financial
condition" does not take into account the proceeds from illegal drug transac-
tions. Her argument is meritless because her financial condition does not
bear on whether she could have bought the chemicals. In addition, the
government does not need to prove that she paid for the drugs to sustain its
burden at trial.
14
chemicals, her financial condition was irrelevant.1
As to her attic temperature, Candace O'Leary contends that a
cook could not have taken place there in August. Yet the govern-
ment alleged that two other cooks took place in Candace O'Leary's
attic, one in March 1989 and the other between March and August
1989. Furthermore, not all of the activities involved in a "cook"
are alleged to have occurred in the attic. Thus, the district
court properly excluded this evidence as irrelevant. We conclude
that the district court did not abuse its discretion in refusing to
admit Candace O'Leary's evidence concerning her financial condition
and her attic temperature.
VIII.
Candace O'Leary also contends that the improper admission of
the Culberhouse testimony prejudiced her and necessitated a new
trial. Shane Culberhouse testified at trial against Phillips. He
attacked Phillips's character and testified about using drugs with
Phillips at his law office and smelling drugs on Phillips at the
Benton courthouse. The district court granted Phillips a new trial
based upon the improper admission of character evidence. Candace
O'Leary claims that because she was a close personal friend and
legal secretary to Phillips, Culberhouse's testimony prejudiced

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her, too. She argues, essentially, that a jury would view her
workplace as a drug den and her close friend and boss as a drug
user.
The district court based its grant of a new trial for Phillips
upon testimony by Culberhouse concerning the smell of PA at the
Benton courthouse. Culberhouse was to rebut Phillips's testimony
by giving testimony of "bad acts" by Phillips. Instead,
Culberhouse's testimony also attacked Phillips's character,
warranting a new trial. But no character attacks were made against
Candace O'Leary.
We review the denial of a motion for new trial for abuse of
discretion. United States v. Baytank, Inc., 934 F.2d 599, 617 (5th
Cir. 1991). Since Candace O'Leary's character was not attacked by
Culberhouse's testimony, her claim is meritless. Phillips was
prejudiced by testimony concerning the smell of PA at the court-
house, not by the testimony concerning the drug use in Phillips's
office. Furthermore, the court admitted that granting a new trial
for Phillips was a "close call." Thus, the court did not abuse its
discretion in denying Candace O'Leary's motion for new trial.
IX.
All five defendants challenge their sentences imposed under
the Guidelines. We review the findings of fact under the "clearly
erroneous" standard, but legal application of the guidelines is
reviewed de novo. United States v. Barbontin, 907 F.2d 1494 (5th
Cir. 1990). In the event that the district court misapplied the

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2 Only Beal objected at sentencing to the specific finding that the 51
pounds of PA was relevant conduct.
16
Guidelines, a reviewing court must remand for resentencing. Id.
A.
All five defendants argue that the fifty-one pounds of PA
seized from Arnold's residence should not have been included in
their relevant conduct under U.S.S.G. § 1B1.3. The O'Learys
additionally rely upon their acquittal on the possession of PA
charges to demonstrate that the PA was not relevant conduct.
The district court adopted the presentence report ("PSR") as
its findings of fact when sentencing each defendant. Thus, the
court's findings must be reviewed for clear error. United States
v. Ford, 996 F.2d 83, 85 (5th Cir. 1993). The district court made
a specific factual finding with regard to Beal that the PA was
"reasonably foreseeable" in his participation in the conspiracy.2
An individual dealing in large amounts of controlled sub-
stances is presumed to know that the drug organization with which
he deals "extends beyond his universe of involvement." United
States v. Thomas, 963 F.2d 63, 65 (5th Cir. 1992) (citing United
States v. Devine, 934 F.2d 1325 (5th Cir. 1991), cert. denied,
112 S. Ct. 954 (1992). There was evidence that the garbage can of
PA was moved from the O'Learys' home to Phillips's office and taken
by Atkins. Eventually, the PA was hidden at Arnold's. Atkins
apparently informed Beal about the source of the chemicals and Beal
informed Holt.

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17
Each defendant knew that PA was required to produce metham-
phetamine. Thus, it was reasonably foreseeable that someone would
have to obtain the PA to manufacture the methamphetamine. There is
credible evidence to link each of the defendants to the PA for the
purposes of determining relevant conduct. The factual finding of
the district court was not clearly erroneous.
B.
Both O'Learys further argue that the equivalency tables were
incorrectly used. PA is an unlisted substance on the Drug Quantity
Table, U.S.S.G. § 2D1.1(c), so the 51 pounds of PA was converted to
19.32 pounds of P2P, which was converted to 3,645 kilograms of
marihuana, resulting in a level 34 base offense. However,
methamphetamine is listed on the Drug Quantity Table, and the
defendants were convicted of conspiracy to manufacture methamphet-
amine. The probation officer apparently used the Drug Equivalency
Table ("DET") to determine how much methamphetamine could be
manufactured from 51 pounds of PA. Although the PSR does not
explicitly reveal the formula used to convert PA to P2P and then to
marihuana, the DET numbers correspond to the stated conversions,
indicating that the probation officer used the DET.
Under United States v. Salazar, 961 F.2d 62, 64 (5th Cir.
1992), a court may not use the DET to determine manufacturing
conversion ratios. The DET is used only to convert unlisted
substances or when more than one substance is in the conviction.
Since the conviction was for conspiracy to manufacture methamphet-

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3 Mrs. O'Leary stated, "I don't understand the guidelines saying this
amount of chemicals will make this amount of drugs . . . ." The court later
asked, "Any other objections?"
18
amine, the use of the DET was error, and we must remand for
resentencing. The recent case of United States v. Hoster, 988 F.2d
1374, 1380-83 (5th Cir. 1993), thoroughly explains this issue. See
also United States v. Roberts, No. 92-8197, 1993 WL 368240 (5th
Cir. Sept. 22, 1993) (following Hoster). The sentence should be
determined according to the formula enumerated in Hoster.
Only Patrick O'Leary and Candace O'Leary raised this issue on
appeal, although it obviously affects all five defendants. The
government contends that the O'Learys did not properly object to
the PSR or the use of the DET at sentencing. The record indicates,
however, that Candace O'Leary's comments were treated as an
objection by the court.3 Patrick O'Leary made no objection at
sentencing to the PSR, but since he properly raised the issue on
appeal, we review the drug quantity calculation for plain error.
United States v. Martinez-Cortez, 988 F.2d 1408, 1410-11 (5th Cir.
1993), petition for cert. filed (U.S. July 12, 1993) (No. 93-5197).
We conclude that the use of the DET in calculating the base level
offense constitutes plain error.
Since only the O'Learys raise this issue on appeal and the
determination of methamphetamine quantity involved an impermissible
use of the DET, we remand as to these two defendants for
resentencing consistent with United States v. Hoster. Under United
States v. Smallwood, 920 F.2d 1231, 1238 (5th Cir.), cert. denied,
111 S. Ct. 2870 (1991), however, the defendants not challenging the

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19
basis for the calculation at sentencing or in their briefs are
deemed to have waived their rights. Cf. United States v. Gray,
626 F.2d 494, 497 (5th Cir.) (defendant who did not object at trial
or brief issue may adopt codefendant's arguments at oral argument
only for good cause under FED. R. APP. P. 2), cert. denied, 449 U.S.
1038 (1980).
C.
Arnold also argues that his acceptance of responsibility
entitled him to a three-level decrease instead of merely two
levels. Great deference is afforded a sentencing court in
determining the extent of acceptance of responsibility. Although
Arnold could have received a maximum decrease of three levels, the
court was not required to give him all three.
X.
The convictions and sentences of Holt and Arnold are AFFIRMED.
Beal did not timely appeal, so his case must be REMANDED for a
determination of excusable neglect. The judgments of sentence of
Candace O'Leary and Patrick O'Leary are VACATED and REMANDED for
resentencing.

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